On Rehearing
There are several requests in appellee’s motion for rehearing that some statements of fact made in the original opinion here-' in be corrected. Exception is taken to the statement that at the time the will was executed appellee had some outstanding judgments against him. That there was some evidence of this fact we think is a fair inference from appellee’s own testimony.' We substitute for the expression objected to the statement that there was some evidence that appellee had outstanding judg- • ments against him at such time. It might be further added that, under his testimony, in 1939 he owed considerable money, and would not state that such amount was less than $30,000; further, he stated that in 1939 he had no property standing in- his name. These circumstances were mentioned, not as having great weight, but as offering an explanation as to why the devise of the most valuable portion of the estate was, made to his daughter rather than directly to him.
It is asserted that the statement in the. opinion that after the statements qf Judge ¡ Gray, “several of the jurors who had. theretofore voted to answer Issues Nos, 1 and 2 ‘No,’ and No. 3, ‘Yes,’ testified that they changed their votes on account of Judge Gray’s statements,” should be modified. The ground urged ,is that the. trial court found that Issues 1, 2 and 3 had all been answered before Judge Gray made-the statements in question.
No findings of fact appear in the record, hence we infer that the contention is that such finding is to be inferred from the overruling of the motion. Several of the-jurors testified as to the facts as stated in the opinion. Furthermore, when the jury appeared in open court to. report the impossibility of arriving at a verdict, it. was stated the jurors were evenly divided on the issues submitted. Judge Gray’s" statements followed shortly after their return to the juryroom, and in a comparatively short time a v.erdict- was reached-.
It was stated in the original opinion--that • there was some testimony tending to show that some of the jurors changed their vote-son Issues Nos. 1, 2 and 3 by virtue of an agreement among the members of the jüry that the verdict should' be against the codicil. From the overruling of the motion for a new trial, we think it may be fairly inferred that the. court -found there was no such agreement.
*652We gladly correct the statement that soon after the execution of the will changes or alterations were made therein. The evidence was that at sometime after the execution of the will the alterations were made. The only evidence as to by whom same were made was by the testimony of the witness Lowrey, who said the changes made were in the handwriting of the testatrix.
In the course of his motion appellee rather plangently insists that this court point out any evidence raising the issue of undue influence. Under the heading “Concluding Remarks,” it is asserted the assignment was that as a matter of law undue influence was established by the evidence, hence this court should not have discussed the question as to whether undue influence was raised as an issue. In discussing as to whether the evidence amounted to proof of undue influence, it is difficult to avoid considering whether or not it was sufficient to raise the issue.
We shall attempt to briefly discuss, in a general sort of way, some of the evidence. It is realized that the question is close. In this discussion we shall refrain from pointing out evidence mentioned in the opinion, except in a general way. The age and infirmity of the testatrix are to be considered, the confidential relationship existing between testatrix and appellee likewise; the apparent unnaturalness of the' will. These, while cogent circumstances, are not in and of themselves sufficient to raise the issue. What we shall hereafter say relates to matters occurring subsequent to the execution of the will of April, 1938.
Mrs. Culp was an employee of the testatrix, having been secured, together with her husband, by appellee for her. She testified, in substance, that she spoke to ap-pellee in regard to quitting. In part, as to ■this conversation, she testified: “He said * * * it would be quite a hardship on him at that time to try and get someone else. ITe also said he knew it was a hard proposition all right, — hard to do. He said if we would go ahead and try to please the old lady, get along with her, he said: ‘Of course, it’s like a gambling wheel, you could not tell where it would stop, but if it came his way, he would try to see that we were taken care of.’ ” This, perhaps, is entitled to slight weight.
It cannot be contended, we think, there was no evidence that there was not undue influence in obtaining the transfer of the vendor’s lien notes, in obtaining the execution of the codicil. The transfer of the notes was drawn by appellee’s own order, and so was the codicil. There is wanting evidence that the testatrix ever directed the drawing of either. Each was promptly signed by the testatrix. The witnesses thereof were deputies of the appellee. It is inferable, we think, that appellee sent one of the witnesses to this codicil for the purpose of witnessing same. That the testatrix readily signed papers which appellee caused to be presented to her is evidenced with reference to the property in Sonora. This property was deeded to appellee by testatrix. He subsequently mortgaged same to an insurance company. This is the same property that was purportedly devised to him by the codicil. There is some evidence, we think, that a false consideration was recited — that there was in fact no consideration. Further there was some evidence from which it might be inferred that testatrix was ignorant of the fact she had ever signed the deed. This will, very shortly before the execution of the codicil was sought, was in the custody of the ap-pellee. How long, the evidence fails to show.
From the evidence, taken as a whole, it might be inferred that the design was in the mind of appellee to acquire all of the property of any substantial value for himself and his daughter. Nor do we think there is an entire lack of evidence of overt acts on his part to carry out this design. He caused the codicil to be drafted and the transfer of the vendor’s lien notes, and each instrument to be presented to testatrix for execution — presented and witnessed by his official deputy.
It is asserted that all these were subsequent to the execution of the will. This is true, but still we are of the opinion that all were admissible in evidence. Each cast its shadow backward. Beadle v. McCrabb, Tex.Civ.App., 199 S.W. 355 (writ denied).
Undue influence may be established by circumstances as well as direct evidence. Mayes v. Mayes, Tex.Civ.App., 159 S.W. 919; Holt v. Guerguin, Tex.Civ.App., 156 S.W. 581; Leahy v. Timon, Tex.Civ.App., 204 S.W. 1029; Id., 110 Tex. 73, 215 S.W. 951.
We do not overlook that the testimony of the witnesses Lowrey, Trainer and Mrs. Vicars makes a strong showing *653that the will was free from undue influence ; further, we have kept in mind the principle that undue influence must be in operation at the very time of making the will, and the will result therefrom. Viewing this evidence as a whole, we adhere to the view that the issue was raised by the evidence. This elderly and infirm lady had a right to make a will, if she was endowed with sufficient mental capacity. Within the content of her right was the right to make same in accordance with her untrammeled desire. Whether she had requisite mental capacity under the evidence was an issue for the jury, and also, we think, whether same represented her untrammeled desire.
We think there is no merit in the contention that if the judgment of the trial court be reversed as to the will, it should likewise be reversed as to the codicil. The issues are separate and distinct.
The motion is overruled.
WALTHALL, J., not participating.